The Supreme Court would have to abide by stronger ethics standards under legislation approved on Thursday by the Senate Judiciary Committee, a response to recent revelations about donor-funded trips by justices. The bill faced united opposition from Republicans, who said it could “destroy” the court.
The legislation has little chance to make it through the full Senate.
The panel voted along party lines to set ethics rules for the court and a process to enforce them, including new standards for transparency around recusals, gifts and potential conflicts of interest. Democrats first pushed the legislation after reports earlier this year that Justice Clarence Thomas participated in luxury vacations and a real estate deal with a top GOP donor — and after Chief Justice John Roberts declined to testify before the committee about the ethics of the court.
Since then, news reports also revealed that Justice Samuel Alito had taken a luxury vacation with a GOP donor. And The Associated Press reported last week that Justice Sonia Sotomayor, aided by her staff, has advanced sales of her books through college visits over the past decade.
Senate Judiciary Committee Chairman Dick Durbin said the legislation would be a “crucial first step” in restoring confidence in the court. He said that if any of the senators sitting in the room had engaged in similar activities, they would be in violation of ethics rules.
“The same is not true of the justices across the street,” Durbin said.
The ethics legislation has little chance of passing the Senate — it would need at least nine GOP votes, and Republicans have strongly opposed it — or the Republican-controlled House of Representatives. But Democrats say the spate of revelations means that enforceable standards on the court are necessary.
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The legislation comes after years of increasing tension, and increasing partisanship, on the committee over the judiciary. Then-President Donald Trump nominated three conservative justices to the Supreme Court, all of whom were confirmed when Republicans were in the Senate majority and with considerable opposition from Democrats. The court has as a result shifted sharply to the right, overturning the nationwide right to an abortion and other liberal priorities.
Republicans charged that the legislation is more about Democratic opposition to the court’s decisions than its ethics.
“It's about harassing and intimidating the Supreme Court,” said Iowa Sen. Chuck Grassley, a senior GOP member of the panel.
South Carolina Sen. Lindsey Graham, the top Republican on the Judiciary panel, said Democrats are trying to “destroy” the court as it exists by tightening the rules around recusals and disqualifying conservatives from some decisions. Congress should stay out of the court’s business and mind the separation of powers, Graham said.
The bill “is an assault on the court itself,” Graham said.
The legislation would mandate a new Supreme Court “code of conduct” with a process for adjudicating the policy modeled on lower courts that do have ethics codes. It would require that justices provide more information about potential conflicts of interest, allow impartial panels of judges to review justices' decisions not to recuse and require public, written explanations about their decisions not to recuse. It would also seek to improve transparency around gifts received by justices and set up a process to investigate and enforce violations around required disclosures.
Republicans on the committee offered a series of amendments to the bill, some of which were focused on boosting security for judges after a man was found with a gun, knife and pepper spray near the home of Supreme Court Justice Brett Kavanaugh last year. The panel rejected most of the amendments as majority Democrats said that Republicans were trying to distract from the ethics reforms.
Durbin pushed back on the notion that the legislation is about politics, noting he had introduced legislation on Supreme Court ethics reforms more than ten years ago, when the court was more liberal. “The reforms we are proposing would apply in equal force to all justices,” Durbin said.
The current push came after news reports revealed Thomas’ close relationship with Dallas billionaire and GOP donor Harlan Crow. Crow had purchased three properties belonging to Thomas and his family in a transaction worth more than $100,000 that Thomas never disclosed, according to the nonprofit investigative journalism organization ProPublica. The organization also revealed that Crow gifted Thomas and his wife, Ginni, with hundreds of thousands of dollars worth of annual vacations and trips over several decades.
Durbin had invited Roberts to testify at a hearing, but he declined, saying that testimony by a chief justice is exceedingly rare because of the importance of preserving judicial independence. Roberts also provided a “Statement on Ethics Principles and Practices” signed by all nine justices that described the ethical rules they follow about travel, gifts and outside income.
The statement provided by Roberts said that the nine justices “reaffirm and restate foundational ethics principles and practices to which they subscribe in carrying out their responsibilities as Members of the Supreme Court of the United States.”
The statement promised at least some small additional disclosure when one or more among them opts not to take part in a case. But the justices have been inconsistent in doing so since.
Roberts has acknowledged that the court could do more to adhere to the highest standards of ethical conduct, but he didn't elaborate and has not followed up publicly on that idea.
Besides Sotomayor's push for book sales, the AP reported that universities have used trips by justices as a lure for financial contributions by placing them in event rooms with wealthy donors and that justices have taken expenses-paid teaching trips to attractive locations that are light on actual classroom instruction.
